Himachal Pradesh High Court
Rajeev Sharma vs Pradeep Kumar on 28 March, 2025
Author: Virender Singh
Bench: Virender Singh
( 2025:HHC:9529 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.Revision No. 339 of 2024
Reserved on : 17.03.2025
Decided on : 28.03.2025
Rajeev Sharma …Petitioner
Versus
Pradeep Kumar …Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Ashok Sharma, Senior
Advocate with Ms. Anubhuti
Sharma, Advocate.
For the respondent : Mr. Vinod Thakur, Advocate.
Virender Singh, Judge
PetitionerRajeev Sharma has filed the present
revision petition, under Section 397 read with Section 401
of the Code of Criminal Procedure (hereinafter referred to
as the ‘Cr.PC‘) against the orders dated 05.02.2024 and
30.03.2024, passed by the Court of learned Chief Judicial
Magistrate, Hamirpur, District Hamirpur, H.P. (hereinafter
referred to as the ‘trial Court’), in Case No.55I14 RBT 41
I2019, titled as Rajeev Sharma versus Pradeep Kumar.
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 ( 2025:HHC:9529 )
2. By way of order dated 05.02.2024, Cr.MA
No.267 of 2016, i.e. application, filed by respondent
Pradeep Kumar, under Section 45 of the Indian Evidence
Act, has been allowed, and Cr.MA No.169 of 2024 i.e.
application, filed under Section 311 of Cr.PC, has been
dismissed, by the learned trial Court. The order, by way of
which, application, under Section 45 of the Indian
Evidence Act, has been allowed, is being challenged before
this Court.
3. For the sake of convenience, the parties to the
present lis are hereinafter referred to, in the same manner,
as were, referred to, by the learned trial Court.
4. Brief facts, leading to the filing of the present
revision petition, before this Court, may be summed up, as
under:
4.1. Complainant Rajeev Sharma, has filed a
complaint, under Section 138 of the Negotiable
Instruments Act, (hereinafter referred to as ‘the N.I. Act‘),
regarding cheque No.429789, dated 31.03.2014,
amounting to Rs.5,00,000/, drawn on Kangra Central Co
3 ( 2025:HHC:9529 )
operative Bank, Branch Pucca Bharoh168, Hamirpur
(hereinafter referred to as ‘the cheque in question’).
4.2. According to the complainant, the accused owes
debt and liability, as such, in order to discharge his legal
liability, he has issued the cheque, in question, which, on
production, before the banker of the accused, for
encashment, was received back, uncashed, with the
remarks ‘insufficient funds’.
4.3. Thereafter, the requisite legal notice was served
and despite service of the notice, when the payment was
not made, the complaint was filed before the learned trial
Court.
4.4 The learned trial Court, finding a prima facie
case, on the basis of the preliminary evidence, passed the
summoning order on 26.9.2014. After securing the
presence of the accused, the learned trial Court has found
sufficient grounds to proceed against the accused for
commission of offence, under Section 138 of the N.I. Act.
As such, Notice of Acquisition was put to him vide order
dated 03.08.2015, to which, he has not pleaded guilty and
claimed trial. Consequently, the complainant was directed
4 ( 2025:HHC:9529 )
to adduce evidence. After closure of the evidence, the case
was listed for the statement of accused, under Section 313
of the Cr.PC.
4.5. On 27.07.2016, an application under Section
45 of the Indian Evidence Act was moved by the accused,
for expert opinion of handwriting expert regarding
signatures of accused on the cheque in question. It has
been pleaded that the cheque, in question, be sent to
handwriting expert along with signature of the accused.
4.6. According to the accused, the cheque in
question, had been lost and in this regard, he had also
lodged rapat with Police Station, Hamirpur. According to
him, no cheque has ever been issued by the accused in
favour of the complainant and the cheque in question does
not bear the signature of he accused. Hence, a prayer has
been made to allow the application.
4.7. The application has been contested by the
complainant by denying the fact that the application is not
maintainable, as, the case, at the relevant time, when
application, under Section 45 of the Indian Evidence Act,
was filed, was listed for recording the statement of
5 ( 2025:HHC:9529 )
accused, under Section 313 Cr.PC and the accused could
lead defence evidence, at the appropriate stage.
4.8. The application had further been contested on
the ground that the cheque, in question, was returned with
the remarks ‘insufficient funds’ and not on the ground that
the signature has not tallied, as such, according to the
complainant, no useful purpose would be served by
sending the cheque in question to the handwriting expert.
4.9. Learned trial Court, in this case, has allowed
the application, on the ground that it was the defence of
the accused from the very beginning that the cheque, in
question, does not bear his signatures, as such, to
corroborate his defence, by getting his signatures
compared with the signatures on the cheque, in question,
the application was ordered to be allowed.
5. Relevant portion of the order dated 5.2.2024,
passed by the learned trial Court, while allowing the
application, under Section 45 of the Indian Evidence Act
and dismissing the application under Section 311 Cr.PC,
moved by the accused, is reproduced, as under :
” xxx xxx xxx
6 ( 2025:HHC:9529 )
Thus, from very beginning defence of the
accused is that cheque Ext.P.1 involved in the
present case does not contain his signatures. In
these circumstances accused should be allowed
to corroborate his defence by getting his
signatures compared with the signatures on the
cheque. Thus, present application under Section
45 of Indian Evidence Act is thus allowed.
Application after due completion be tagged with
main case file for record.
xxx xxx xxx
Now to come up for presence of accused
before this Court for giving specimen signatures
as well as informing the court name of expert
who will compare the signatures for
12.02.2024.”
6. On 29.02.2024, the learned trial Court has
passed the following orders:
At this stage, learned counsel for the parties
stated that there are chances of compromise in
the present case. Let the present case be referred
to National Lok Adalat for 09.03.2024. It is
hereby clarified that if the compromise is not
effected the case shall be taken up for effecting
hearing i.e on 22.03.2024 for providing
signatures of the accused as well as informing
the court name of expert who will compare the
signatures. No separate notices will be issued to
the parties.”
7. Thereafter, on 30.03.2024, the following order,
came to be passed by the learned trial Court:
“Compromise failed. Now to come up for
providing specimen signatures by the accused
for 18.04.2024.”
7 ( 2025:HHC:9529 )
8. The present revision petition has been filed,
challenging the orders dated 05.02.2024 and 30.03.2024,
on the ground that the learned trial Court fell in error by
allowing the application, under Section 45 of the Indian
Evidence Act, as, the Court is not supposed to collect
evidence on behalf of the parties.
9. Highlighting the fact that no suggestion was
even put to the complainantpetitioner qua forging of the
cheque in question. It has been contended that it is for the
parties to prove their case by leading evidence.
10. On the basis of the above facts, Shri Ashok
Sharma, learned Senior Advocate assisted by Ms. Anubhuti
Sharma, Advocate has argued that the procedure, which
had been adopted by the learned trial Court, while passing
the orders impugned herein, is not known to the law.
11. It has also been argued by the learned Senior
Counsel that in the application, nothing has been
mentioned by the accused, as to which are his admitted
signatures and with which signatures, he wants to get the
signatures over the cheque in question compared.
8 ( 2025:HHC:9529 )
12. Per contra, it has been argued by Shri Vinod
Thakur, learned counsel for the accused that the accused
has every right to prove and probabilize his defence, by
leading cogent evidence, and that is why the accused had
moved the application for comparing his signatures with
the signatures, on the cheque, in question. As such, a
prayer has been made to dismiss the petition.
13. In addition to this, learned counsel appearing
for the accused has raised the objection, with regard to
maintainability of the petition, by arguing that the orders
impugned herein, fall within the definition of interlocutory
orders.
14. So far as the objection raised by the learned
counsel for the accused qua the maintainability of the
present petition, before this Court, is concerned, the
learned trial Court, in the present case, has allowed the
application filed under Section 45 of the Evidence Act, by
virtue of which, a prayer has been made to compare the
signatures over the cheque, in question, with the
signatures of the accused.
9 ( 2025:HHC:9529 )
15. The petitioner is before this Court, by way of the
present petition, filed under Section 397, read with Section
401 Cr.PC. The provisions of Section 397 Cr.PC, are
reproduced, as under:
Section 397 – Calling for records to exercise
powers of revision
(1) The High Court or any Sessions Judge may
call for and examine the record of any
proceeding before any inferior Criminal Court
situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding.
Sentence or order, recorded or passed, and as to
the regularity of any proceedings of such inferior
Court, and may, when calling for such record,
direct that the execution of any sentence or order
be suspended, and if the accused is in
confinement, that he be released on bail or on
his own bond pending the examination of the
record.
Explanation-All Magistrates, whether
Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for
the purposes of this SubSection and of section
398.
The powers of revision conferred by SubSection
(1) shall not be exercised in relation to any
interlocutory order passed in any appeal,
inquiry, trial or other proceeding.
If an application under this section has been
made by any person either to the High Court or
to the Sessions Judge, no further application by
the same person shall be entertained by the
other of them.
10 ( 2025:HHC:9529 )
16. The term ‘interlocutory order’ has no where
been defined in the Cr.PC (now BNSS). The Hon’ble
Supreme Court in a case Mohanlal Manganlal versus
State of Gujarat, AIR 1968 Supreme Court 733, has
elaborately discussed the terms ‘final order’ and
‘interlocutory order’. Relevant paragraphs 4, 5, 7 and 15 of
the judgment, are reproduced, as under:
4. The question as to whether a judgment or
an order is final or not has been the subject
matter of a number of decisions; yet no single
general test for finality has so far been laid
down. The reason probably is that a judgment or
order may be final for one purpose and
interlocutory for another or final as to part and
interlocutory as to part. The meaning of the two
words “final” and .’interlocutory” has, therefore,
to be considered separately in relation to the
particular purpose for which it is required.
However, generally speaking. a judgment or
order which determines the principal matter in
question is termed final. It may be final although
it directs enquiries or is made on an interlocutory
application or reserves liberty to apply. (1) In
some of the English decisions where this
question arose, one or the other of the following
four tests was applied.
1. Was the order made upon an application such
that a decision in favour of either party would
determine the main dispute ?
2. Was it made upon an application upon which
the main dispute could have been decided?
3. Does the order as made determine the
dispute?
11 ( 2025:HHC:9529 )
4. If the order in question is reversed, would the
action have to go on?
5. The first test was applied in Salaman v.
Warner(2) and Stan dard Discount Co. v. La
Grange(3). But the reasoning in the latter case
was disapproved in A.G. v. Great Eastern Rail
Co.(4). In Shutrook v. Tufnell(5) the order did not
decide the matter in the litigation but referred it
back to the arbitrator, though on the application
on which it was made, a final determination
might have been made. The order was held to be
final. This was approved in Bozson v.
Altrincham Urban Council( 6) by Lord Halsbury
who declined to follow the dictum in Salaman v.
Warner(2) and Lord Alverstone stated the test as
follows :
“Does the judgment or order as made
finally dispose of the rights of the parties?
This test, however, does not seem to have been
applied in A. G. v. Great Eastern Urban
Council(6) where an order made on an
application for summary judgment under R.S.C.
Ord. 14 refusing unconditional leave to defend
was held not to be an interlocutory order for
purposes of appeal though made on an
interlocutory application. An interlocutory order,
though not conclusive of the main dispute may
be conclusive as to the subordinate matter with
which it deals.
7. But these were cases where the impugned
orders were passed in appeals or revisions and.
since an appeal or a revision is continuation of
the original suit or proceeding the test applied
was whether the order disposed of the original
suit or proceeding. If it did not, and the suit or
proceeding was a live one, vet to be tried. the
order was held not to be final. Different tests
have been applied. however to orders made in
proceedings independent of the original or the
main proceedings. Thus in Premchand
Sastramdasv. The State of Bihar an order of the
High Court dismissing an application to direct
12 ( 2025:HHC:9529 )
the Board of Revenue to state a case to the High
Court under the Bihar Salestax Act, 1944, was
held not to be a final order on two grounds : (1)
that the order was made under a jurisdiction
which was consultative and standing by itself, it
did not bind or affect the rights of the parties
though the ultimate order which would be
passed by the Board would be based on the
opinion expressed by the High Court, and (2)
that on a construction of Art. 31 of the Letters
Patent of the High Court of Patna an appeal
would lie to the Privy Council only in cases of
orders passed by the High Court in its appellate
or original jurisdiction and not the advisory
jurisdiction conferred by the Act. It is clear that
though the proceeding in which the High Court
passed the impugned order may be said to be
an independent proceeding, one of the tests
applied was that it did not determine the rights
of the parties as the controversy as to the
liability of the assessee still remained to be
determined by the Board. The decision in State
of Uttar Pradesh v. Sujan Singh(1) does not help
because the proceeding in which the impugned
order was passed was assumed to be an
interlocutory one arising from and during the
course of the trial itself. The question was
whether the order rejecting the State’s claim of
privilege from producing a certain document was
a final order within the meaning of Art. 134(1)
(c). The criminal proceedings, said the Court,
were the proceedings against the respondents
for an offence under s. 6(1) of the Prevention of
Corruption Act, 1947. They were still pending
before the Special Judge. In the course of those
proceedings the respondents applied for the
production of the document by the Union
Government and that was allowed by the Court.
The order, therefore , was an interlocutory order
pending the said proceedings. It did not purport
to decide the rights of the parties i.e. the State of
Uttar Pradesh and the respondents, the
accused. It only enabled the accused to have the
said document proved and exhibited in the case
13 ( 2025:HHC:9529 )
and therefore was a procedural step for
adducing evidence. The court also said that
assuming that the order decided some right of
the Union Government, that Government was
neither a party to the criminal proceedings nor a
party either before the High Court or this Court.
This decision was clearly on the footing that the
respondents’ application for production of the
document in which the Union Government, not a
party to the trial, claimed privilege was an
interlocutory and not an independent
proceeding. The question is what would be the
position if (a) the application was an
independent proceeding, and (b) if it affected the
right of the Union Government.
xxx xxx xxx
15 In a civil proceeding, an order is final if it
finally decides the rights of the parties, see
Ramchand Manjilal v. Goverdhandas Vishindas
Ratanchand. If it does not finally decide the
rights of the parties the order is interlocutory,
though it conclusively determines some
subordinate matter and disposes of the
proceeding in which the subordinate matter is in
controversy. For this reason, even an order
setting aside an award is interlocutory, fee
Croasdell and Cammell Laird & Co., Limited v.
In re, (1906) 2 KB 569. A similar test has been
applied for determining whether an order ill a
criminal proceeding is final, see S. Kuppuswami
Rao v. The King(:’). For the purposes of this
appeal, we do not propose to examine all the
decisions cited at the bar and to formulate a
fresh test on the subject. Whatever test is
applied, an order directing the filing of a
complaint and deciding that there is a prima
facie case for an enquiry into an offence is not a
final order. It is merely a preliminary step in the
prosecution and therefore an interlocutory order.
As the order is not final, the High Court was not
competent to give a certificate under Art. 1 34 (1)
(c) of the Constitution. The appeal is not
maintainable and is dismissed.
14 ( 2025:HHC:9529 )
17. The Hon’ble Federal Court of India, in S.
Kuppuswami Rao versus The King, MANU/FE/0001/
1947, has also interpreted the term ‘final order’.
Paragraphs 6 to 9 of the judgment, are reproduced, as
under:
6. The question then is what is the meaning
of “judgment, decree or final order of a High
Court” in this section? The expression “final
order” has been judicially interpreted and its
meaning is now well settled. In Salaman v.
Warner1 , Lord Esher, M.R. discussed the
meaning of the expression, “final order” in these
terms:
If their decision, whichever way it is given,
will, if it stands, finally dispose of the
matter in dispute, I “think that for the
purposes of these rules it is final. On the
other hand, if their decision, if given in one
way, will finally dispose of the matter in
dispute, but, if given in the other, will allow
the action to go on, then I think it is not
final, but interlocutory.
Fry, L.J. remarked as follows:
I conceive that an order is ‘final’ only where
it is made upon an application or other
proceeding which must, whether such
application or other proceeding fail or
succeed, determine the action. Conversely I
think that an order is ‘interlocutory’ where it
cannot be affirmed that in either event the
action will be determined.
Lopes, L.J. said as follows:
I think that a judgment or order would be
final within the meaning of the rules, when,
whichever way it went, it would finally
determine the rights of the parties.
15 ( 2025:HHC:9529 )In Bozson v. The Altrincham Urban Lord
Alverstone, C.J. held that the real test for
determining the question was:
Does the judgment or order, as made,
finally dispose of the rights of the parties?
7. In Ramchand Manjimal v. Goverdhandas
Vishandas Ratanchand3 , the question was
in respect of a stay granted under Section
19, Arbitration Act, IX of 1899. The trial
Judge granted a stay, but on appeal the
Court of the Judicial Commissioner of Sind
reversed the order The Judicial
Commissioner granted a certificate under
Section 109, Civil Procedure Code on the
footing that the order passed by him was a
final order. On appeal the Judicial
Committee of the Privy Council pointed out
that the order in question was not a final
order and the preliminary objection against
the sustenance of the appeal was upheld.
Viscount Cave, in delivering the judgment of
the Board, observed as follows:
The question as to what is a final order
was considered by the Court of Appeal in
the case of Salaman v. Warner, (1891) 1
QB. 734(Suupra), Bozson v. The Altrincham
Urban, District Council No. (J) (1903) 1 K.B.
547(Supra) and Issacs v. Salbestien, The
effect of these and other judgments is that
an order is final if it finally disposes of the
rights of the parties. The orders now under
appeal do not finally dispose of those
rights, but leave them to be determined by
the Courts in the ordinary way.
These observations show that the Judicial
Committee considered that the words used
in the abovementioned three English
decisions gave the same meaning to the
expression ” final order”, and adopted the
definition as given by Lord Esher M.R. in
16 ( 2025:HHC:9529 )Salaman’s case (1891) 1 Q.B. 734. The
Judicial Committee further held that when
the effect of the order was to leave the
rights to be determined by the Court in the
ordinary way, the order was not a final
order.
8. In Abdul Rahman v. D.K. Cassim &
Sons5 , Sir George Lowndes, in delivering
the judgment of the Judicial Committee,
stated that the test of finality was whether
the order finally disposed of the rights of
the parties. Referring to Ramchand
Manjimal‘s case A.I.R. (7) 1920 P.C. 86 he
observed as follows:
Lord Cave in delivering the judgment of the
Board laid down, as the result of an
examination of certain cases decided in the
English Courts, that the test of finality is
whether the order ‘finally disposes of the
rights of the parties’, and he held that the
order then under appeal did not finally
dispose of those rights, but left them ‘to be
determined by the Courts in the ordinary
way’. It should be noted that the Appellate
Court in India was of opinion that the order
it had made ‘went to the root of the suit,
namely the jurisdiction of the Court to
entertain it’, and it was for this reason that
the order was thought to be final and the
certificate granted. But this was not
sufficient. The finality must be a finality in
relation to the suit. If, after the order, the
suit is still a live suit in which the rights of
the parties have still to be determined, no
appeal lies against it under Section 109(a)
of the Code.
Sir George Lowndes further added:
In their Lordships’ opinion it is impossible to
distinguish the present case from that upon
which Lord Cave pronounced. The effect of
the order from which it is here sought to
appeal was not to dispose finally of the
17 ( 2025:HHC:9529 )rights of the parties. It no doubt decided an
important, and even a vital, issue in the
case, but it left the suit alive, and provided
for its trial in the ordinary way.
9. In Hori Ram Singh v. The Grown6 , it
was contended that Section 205, was
limited to appeals in civil cases only. The
Court rejected that contention. Sulaiman J.,
after rejecting the contention, further
considered the meaning of the words ”
judgment, decree and final order” in Section
205(1), Constitution Act. The words “final
order” were used in Section 109, Civil
Procedure Code That section prescribes
conditions under which an appeal lies to
the Judicial Committee of the Privy Council
from a decree or final order passed on
appeal by a High Court. It was noticed that
the words “final order” were used in
contrast with interlocutory order. The
learned Judge took the view that in cases
in which the decision of the point in dispute
either way did not result in finally
disposing of the matter before the Court, the
decision did not amount to a final order. In
that case, as noted in the judgment of
Varadachariar J. no objection was taken
on behalf of the Crown to the
maintainability of the appeal and the
majority of the Judges therefore dealt with
the case on the assumption that an appeal
was competent.”
18. The Hon’ble Supreme Court in Madhu Limaye
versus The State of Maharashtra, (1977) 4 Supreme
Court Cases 551, has again explained the meaning of
‘interlocutory order’. Paragraphs 10 and 14 of the
judgment, are reproduced, as under:
18 ( 2025:HHC:9529 )
“10. As pointed out in Amar Nath’s case
(supra) the purpose of putting a bar on the
power of revision in relation to any interlocutory
order passed in an appeal, inquiry, trial or other
proceeding is to bring about expeditious disposal
of the cases finally, More often than not, the
revisional power of the High Court was resorted
to in relation to interlocutory orders delaying the
final disposal of the proceedings. The
Legislature in its wisdom decided to check this
delay by introducing subsection (2), in section
397. On the one hand, a bar has been put in the
way of the High Court (as also of the Sessions
Judge) for exercise of the revisional power in
relation to any interlocutory order, on the other,
the power has been conferred in almost the
same terms as it was in the 1898 Code. On a
plain reading of section 482, however, it would
follow that nothing in the Code, which would
include subsection (2) of section 397 also, “shall
be deemed to limit or affect the inherent powers
of the High Court”. But, if we were to say that
the said bar is not to operate in the exercise of
the inherent power at all, it will be setting at
naught one of the limitations imposed upon the
exercise of the revisional powers. In such a
situation, what isthe harmonious way out ? In
our opinion, a happy solution of this problem
would be to say that the bar provided in sub
section (2) of section 397 operates only in
exercise of the revisional power of the High
Court, meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order. Then in accordance with one
of the other principles enunciated above, the
inherent power will come into play, there being
no other provision in the Code for the redress of
the grievance of the aggrieved party. But then, if
the order assailed is purely of an interlocutory
character which could be corrected in exercise of
the revisional power of the High Court under the
1898 Code. the High Court will refuse to exercise
its inherent power. But in case the impugned
order clearly brings about a situation which is
19 ( 2025:HHC:9529 )
an abuse of the process of the Court or for the
purpose of securing the ends of justice
interference by the High Court is absolutely
necessary, then nothing contained in section
397(2) can limit or affect the exercise of the
inherent power by the High Court. But such
cases would be few and far between. The High
Court must exercise the inherent power very
sparingly. One such case would be the
desirability of the quashing of, a criminal
proceeding initiated illegally, vexatiously or as
being without jurisdiction. Take for example a
case where a prosecution is launched under
the Prevention of Corruption Act without a
sanction. then the trial of the accused will be
without jurisdiction and even after his acquittal
a second trial after proper sanction will not be
barred on the doctrine of Autrefois Acquit. Even
assuming, although we shall presently show
that it is not so, that in such a case an order of
the Court taking cognizance or issuing processes
is an interlocutory order. does it stand to reason
to say that inherent power of the High Court
cannot be exercised for stopping the criminal
proceeding as early as possible, instead of
harassing the accused upto the end ? The
answer is obvious that the bar will not operate
to prevent the abuse of the process of the Court
and/or to secure, the ends of justice. The label
of the petition filed by an aggrieved party is
immaterial. The High Court can examine the
matter in an appropriate case under its inherent
powers. The present case undoubtedly falls for
exercise of the power of the High Court in
accordance with section 482 of the 1973 Code.
even assuming. although not accepting, that
invoking the revisional power of the High Court
is impermissible.
xxx xxx xxx
14. In passing, for the sake of explaining
ourselves, we may refer to what has been said
by Kania C. J. in Kuppuswami’s case at page
187 by quoting a few words from Sir George
20 ( 2025:HHC:9529 )
Lowndes in the case of Abdul Rahman V. D. K.
Cassim and Sons(3). The learned law Lord said
with reference to the order under
consideration in that case : “The effect of the
order from which it is here sought to appeal was
not to dispose finally of the rights of the parties.
It no doubt decided an important, and even a
vital, issue in the case, but it left the suit alive,
and provided for its trial in the ordinary way.
Many a time a question (1) [187677] 2 A.C. 743.
(3) [1933] 60 Indian Appeals, 76. (2) [1957]
S.C.R. 930. arose in India as to what is the
exact meaning of the phrase “case decided”
occurring in Section 115 of the Code of Civil
Procedure. Some High Courts had taken the
view that it meant the final order passed on final
determination of the action. Many others had
however, opined that even interlocutory orders
were covered by the said term. This Court struck
a mean and it did not approve of either of the
two extreme lines. In Baldevdas v. Filmistan
Distributors (India) Pvt. Ltd.(1) it has been
pointed out :
“A case may be said to be decided, if the Court
adjudicates for the purposes of the suit some
right or obligation of the parties in controversy :”
We may give a clear example of an order in a
civil case which may not be a final order within
the meaning of Article 133 (1) of the Constitution,
yet it will not be purely or simply of an
interlocutory character. Suppose for example, a
defendant raises the plea of jurisdiction of a
particular Court to try the suit or the bar of
limitation and succeeds, then the action is
determined finally in that Court. But if the point
is decided against him the suit proceeds. Of
course, in a given case the point raised may be
such that it is interwoven and interconnected
with the other issues in the case, and that it
may not be possible to decide it under Order 14
Rule 2 of the Code of Civil Procedure as I
preliminary point of law. But, if it is a pure point
21 ( 2025:HHC:9529 )
of law and is decided one way or the other, then
the order deciding such a point may not be
interlocutory, albeitmay not be final either.
Surely, it will be a case decided, as pointed out
by this Court in some decisions, within the
meaning of section 115 of the Code of Civil
Procedure. We think it would be just and proper
to apply the same kind to test for finding out the
real meaning of the expression ‘interlocutory
order’ occurring in section 397(2).”
19. Similar view has also been taken by the Hon’ble
Supreme Court, in V.C. Shukla versus State through
CBI, AIR 1980 Supreme Court 962. Relevant paragraphs
5 to 7, and 30 to 33, of the judgment, are reproduced, as
under:
5. It will be important to note that the word
‘interlocutory order’ used in this subsection
relates to various stages of the trial? namely,
appeal, inquiry, trial or any other proceeding.
The object seems to be to cut down the delays
in stages through which a criminal case passes
before it culminates in an acquittal, discharge or
conviction. So far as the Code of Criminal
Procedure, 1973 is concerned, it has got a wide
and diverse area of jurisdiction inasmuch as it
regulates the procedure of trial not only of the
large number of offences contained in the Indian
Penal Code but also in other Acts and statutes
which apply the Code of Criminal Procedure or
which are statutes in pari material the Code.
Having regard, therefore, to the very large ambit
and range of the Code, the expression
‘interlocutory order’ would have to the given a
broad meaning so as to achieve the object of the
Act without disturbing or interfering with the
fairness of the trial. Fortunately, however, there
22 ( 2025:HHC:9529 )
are a few decisions which have interpreted the
expression ‘interlocutory order’ as appearing in
s. 397(2) of the Code. Before we come to the
decisions, certain features may be noticed here.
In the first place, the concept of appeal against
interlocutory order seems to be by and large
foreign to the scheme of the Code or for that
matter the scheme of the Code of Criminal
Procedure right from 1872 uptodate. Appeal has
been provided only against final orders and not
against interlocutory orders. Instead of appeal,
the Code of 1898 as also the Code of 1872
contained powers of revision which vested in
the High Court to revise any order passed by a
criminal court. In the previous Codes, the term
‘interlocutory’ was not used. Therefore, the
revisional jurisdiction was wide enough to
embrace within its scope any order whether
interlocutory. intermediate or final. Secondly, by
virtue of scores of decisions of the various High
Courts in India and the Privy Council, it was
well settled that the revisional jurisdiction
possessed by the Sessions Judge and the High
Court could be exercised only to example the
legality or propriety of the order impugned and
more particularly the Courts; were to interfere
only if there was an error of law or procedure.
Previous to the Code, the powers of revision
enjoyed by the Sessions Judge or the District
Magistrate for the Chief Judicial Magistrate
through various amendments were rather
limited whereas the power of High Court was
wide and unlimited. Apart from the revisional
power the High Court under the Code of 1898
possessed an inherent power to pass order ex
debito justitiae in order to prevent abuse of the
process of the court. This was a special power
which was to be exercised by the High Court to
meet a particular contingency not expressly
provided for in the Code of Criminal Procedure.
Even in the present Code, the inherent power of
the court has been fully retained under sec. 482
which runs thus:
23 ( 2025:HHC:9529 )
“482. Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High
Court to make such orders as may be necessary
to give effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice.”
6. One of the questions that arose was as to
whether an interlocutory order which could be
revised by the Sessions Judge, can be further
revised under s. 482 of the Code by the High
Court because s. 3.97(3) 1 permitted the power
o, revision to be exercised only by the High
Court or the Sessions Judge but not by both of
them. The limitation contained in s. 397(3) runs
as follows:
“(3) If an application under this section has been
made by any person either to the High Court or
to the Sessions Judge, no further application by
the same person shall be entertained by the
other of them.”
Subsection (3), however, does not limit at all
the inherent power of the High Court contained
in s. 482, as mentioned above. It merely curbs
the revisional power given to the High Court or
the Sessions Judge under s. 397(1) of the Code.
We need not dilate on this aspect because we
are not called upon to consider the
interpretation of S. 397(3) of the Code, although
in one of the cases cited before us this aspect
has been gone into and that is why we have
indicated the same. Mr. Mridul contended that
as the Special Courts Act has fully applied the
procedure of the Code to the trial of the offences
by the Special Judge, the expression
‘interlocutory order’ has been used exactly in
the same sense as in s. 397(2). In other words,
the contention was that s. 11 of the Act is
modelled on s. 397(2) of the Code by telescoping
subsection (2) of the said section into s. 11(1) of
the Act. In support of his contention reliance
was placed in the case of Amar Nath & Ors. v.
State of Haryana & Ors.(1) and particularly to
the following observations made by this Court:
24 ( 2025:HHC:9529 )
“It seems to us that the term ‘interlocutory order’
in s. 397(2) of the 1973 Code has been used in
a restricted sense and not in any broad or
artistic sense. It merely denotes orders of a
purely interim or temporary nature which do not
decide or touch the important rights or the
liabilities of the parties. Any order which
substantially affects the right of the accused, or
decides certain rights of the parties cannot be
said to be an interlocutory order so as to bar a
revision to the High Court against that order,
because that would be against the very object
which formed the basis for insertion of this
particular provision in s. 397 of the 1973 Code.
Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for
bail, calling for reports and such other steps in
aid of the pending proceeding, may not doubt
amount to interlocutory orders against which no
revision would lie under s. 397(2) of the 1973
Code. But orders which are matters of moment
and which affect or adjudicate the rights of the
accused or a particular aspect of the trial cannot
be said to be interlocutoryorders so as to be
outside the purview of the revisional jurisdiction
of the High Court.”
In that case, one of us (Fazal Ali, J.) was a
party to the decision and spoke for the Court. It
is no doubt true that this Court held that an
order summoning an accused was not an
interlocutory order but being a matter of moment
it decided an important aspect of the trial and
was, therefore, in a sense a final order which
could be revised by the Sessions Judge or the
High Court under s. 397 of the Code. The
observations made by this Court, however, have
to be read in the light of the peculiar facts of the
said case. What had happened in that case was
that an FIR was lodged at police station
Butana, District Karnal, mentioning a number of
accused persons as having participated in the
occurrence. The police, after holding
investigations, submitted a chargesheet against
25 ( 2025:HHC:9529 )
the other accused persons except the appellants
before the Supreme Court against whom a final
report under s. 173 of the Code was given by
the police. Th, report was placed before a
Judicial Magistrate, First Class who, after
perusing the same, accepted the report and
released the appellants. Thereafter the
complainant filed a revision before the
Additional Sessions Judge against the order of
the Judicial Magistrate releasing the appellants
but the revision petition was dismissed by the
Judge. Thereafter the informant filed a regular
complaint before the Judicial Magistrate against
all the accused including the appellants. The
learned Magistrate after having examined the
complaint found that no case against the
appellant was established. A further revision
was taken up before the Sessions Judge who
accepted the revision and directed further
inquiry, on receipt of which the Magistrate
issued summons to the appellants
straightaway. Against this order the appellants
went up in revision to the High Court which
dismissed the petition in limine, obviously on
the ground that the order passed by the
Magistrate was an interlocutory one. That is
how the matter came up by special leave before
this Court. It would thus had been that before
the stage of trial of the case reached the
appellants had been released by the Magistrate
who accepted the final report that no case was
made against them. Even a complaint which
was in the nature of a protest petition against
the final report filed before the Magistrate was
also dismissed. When the Magistrate issued
summons in pursuance of an order of further
inquiry by the Sessions Judge cognizance was
taken against the appellants who were ordered
to be put on trial because the order summoning
the appellants virtually amounted to asking the
accused to face the trial. It was in the
background of these circumstances that this
Court held that such an order being a matter of
moment affecting important rights of the parties,
26 ( 2025:HHC:9529 )
could not be said to be purely an interlocutory
order. We have no doubt that the decision of
this Court, referred to above, was absolutely
correct. In fact this part of the decision was
endorsed by a later decision of this Court in the
case of Madhu Limaye v. The State of
Maharashtra The Court observed thus
“In Amar Nath‘s case, as in this, the order of the
Trial Court issuing process against the accused
was challenged and the High Court was asked
to quash the criminal proceeding either in
exercise of its inherent power under section 482
of the 1973 Code corresponding to section 561A
of the Code of Criminal Procedure, 3898herein
after called the 1898 Code or the old Code, or
under Section 397(1) of the new Code
corresponding to section 435 of the old Code.
Two points were decided in Amar Nath‘s case in
the following terms:
(1) “While we fully agree with the view taken by
the learned Judge that where a revision to the
High Court against the order of the Subordinate
Judge is expressly barred under subs. (2) of s.
397 of the 1973 Code the inherent powers
contained in s. 482 would not be available to
defeat the bar contained in s. 397(2).”
(2) The impugned order of the Magistrate,
however was not an interlocutory order.
………… But we are going to reaffirm the
decision of the Court on the second point.” G A
Division Bench consisting of three Judges held
that an order framing a charge was not an
interlocutory order and, therefore, a revision
against such an order was competent before the
Sessions Judge or the High Court. In dwelling
on the various shades and aspects of an
interlocutory order, Untwalia J. who spoke for
the Court, referred to previous decisions of the
Court regarding the scope and ambit of a final
order in order to highlight the nature and
signification of the term ‘interlocutory order’.
Before analysing the decision, it may be
27 ( 2025:HHC:9529 )
necessary to state the facts on the basis of
which the aforesaid decision was rendered. The
prosecution case was that in a press conference
held at New Delhi on September ‘7, 1974, the
appellant before the Supreme Court is said to
have made certain statements and handed over
a press handout containing allegedly some
defamatory statements regarding Shri A. R.
Antulay, the then Law Minister of the
Government of Maharashtra. The State
Government decided to prosecute the appellant
for an offence under s. 500 of the Indian Penal
Code after obtaining the necessary sanction
under s. 199(4) (a) of the Code. Armed with the
sanction, the Public Prosecutor filed a complaint
in the court of the Sessions Judge, Greater
Bombay. The Sessions Judge took cognizance of
the complaint and issued process against the
appellant. At the time when the appellant was
being heard in the Sessions Court, the
allegation against him was resisted on three
grounds
(1) that the court of Sessions had no jurisdiction
to take cognizance of the offence without a
formal commitment of the case to it;
(2) that the sanction given was bad inasmuch
as it was not given by the appointing authority;
and
(3) that the sanctioning authority had not
applied i s E; mind to the facts of the case and
accorded sanction in a casual manner.
The Sessions Judge rejected all these
contentions and framed charges against the
appellant under s. 500, I.P.C. Thereafter, the
appellant moved the High Court in revision
against the order framing the charges. Before
the High Court, a preliminary objection as to the
maintainability of the revision application was
taken. Before proceeding further, it may be
observed that the objections taken by the
appellant in the aforesaid case related to the
root of the jurisdiction of the Sessions Judge
28 ( 2025:HHC:9529 )
and if accepted, would have rendered the entire
proceedings void ab initio. The case before this
Court was not one based on allegations of fact
on which cognizance was taken by a trial court
and afterhaving found that a prima facie case
was made out a charge was framed against the
accused. Even so, the ratio decidendi in the
aforesaid case was, in our opinion absolutely
correct and we are entirely in agreement with
the learned Judges constituting the Bench that
the order of the Sessions Judge framing
charges, in the circumstances of the case, was
not merely an interlocutory order but partook of
the nature of a final order or, at any rate, an
intermediate order so as to be taken out of the
bar contained in s. 397(2) of the Code In that
case, Untwalia J., speaking for the Court
observed as follows:
“It is to be noticed that the test laid down
therein was that if the objection of the accused
succeeded, the proceeding could have ended
but not vice versa. The order can be said to be a
final order only if, in either event, the action will
be determined. In our opinion, if this strict test
were to be applied in interpreting the words
‘interlocutory order’ occurring in section 397(2),
then the order taking cognizance of all offence
by a Court, whether it is so done illegally or
without jurisdiction, will not be a final order and
hence will be an interlocutory one……. But in
our judgment such an interpretation and the
universal application of the principle that what
is not a final order must be an interlocutory
order is neither warranted nor justified. If it
were so it will render almost nugatory the
revisional power of the Sessions Court or the
High Court conferred on it by section
397(10) ……………………..
On the one hand, the legislature kept intact the
revisional power of the High Court and, on the
other, it put a bar on the exercise of that power
in relation to any interlocutory order. In such a
situation it appears to us that the real intention
29 ( 2025:HHC:9529 )
of the legislature was not to equate the
expression “interlocutory order” as invariably
being converse of the words ”final order”. There
may be all order passed during the course of a
Proceeding which may not he final in the sense
noticed in Kuppuswami’s case (Supra), but, yet
it may not be an interlocutory orderpure or
simple. Some kinds of orders may fall in
between the two. By a rule of harmonious
construction, we think that the bar in subsection
(2) of Section 397 is not meant to be attracted to
such kinds of intermediate orders. They may
not be final orders for the purposes of Article
131 of the Constitution, yet it would not be
correct to characterise the as merely
interlocutory orders within the meaning of
section 397 (2).
xxx xxx xxx
Yet for the reasons already alluded to, we feel
no difficulty in coming to the conclusion, after
due consideration, that all order rejecting, the
plea of the accused on a point which when
accepted, will conclude the particular
proceeding, will surely be not an interlocutory
order within the meaning of section 397(2).”
(Emphasis ours)
7. Reading the observations made by this
Court in the aforesaid case as a whole we are
unable to agree with the argument of Mr. Mridul
that this Court in any way disapproved the
tests of a final order or interlocutory order
accepted by the Federal Court in case of S.
Kuppu swami Rao v. The King This Court took
care to explain that in a situation with which
the Judges were dealing in that particular case,
it would ‘not be proper to treat the order framing
charges as an interlocutory order pure and
simple. Even thought the order may be
intermediate it could not be said to be final so
as to bar the revisional jurisdiction of the High
Court under s. 397(3) of the Code. We find
ourselves in complete agreement with the
30 ( 2025:HHC:9529 )
exposition of the law by the learned Judges
who decided the said case. We will deal with a
broader and a wider aspect of the matter in a
later part of our judgment when we deal with
the scope and ambit of the Act. We might
reiterate here even at the risk of repetition that
the term ‘interlocutory order’ used in the Code of
Criminal Procedure has to be given a very
liberal construction in favour of the accused in
order to ensure complete fairness of the trial
because the bar contained in s. 397(3) OF the
Code would apply to a variety of cases coming
up before the courts not only being offences
under the Penal Code but under numerous Acts.
If, therefore, the right of revision was to be
barred, the pro vision containing the bar must
be confined within the four corners of the spirit
and the letter of the law. In other words, the
revisional power of the High Court or the
Sessions Judge could be attracted if the order
was not purely interlocutory but intermediate or
quasi final. The same, however, in our opinion,
could not be said of the Special Courts
Act which was meant to cover only specified
number of crimes and criminals and the
objective attained was quickest despatch and
speediest disposal. Mr. Mridul further relied on
a decision of this Court in the case of State of
Karnataka v. L. Muniswamy & ors. and
particularly on the following observations made
by Chandrachud, J. as he then was:
“On the other hand, the decisions cited by
learned counsel for the respondents in Vadilal
Panchal v. D. D. Ghadigaonkar and Century
Spinning, & Manufacturing Co. v. State of
Maharashtra a show that it is wrong to say that
at the stage of framing charges the court cannot
apply its judicial mind to the consideration
whether or no. there is any ground for
presuming the commission of the offence by the
accused. As observed in the latter case, the
order framing a charge affects a person’s liberty
substantially and therefore it is the . A duty of
31 ( 2025:HHC:9529 )
the court to consider judicially whether the
material warrants the framing of the charge. It
cannot blindly accept the decision of the
prosecution that the accused be asked to face a
trial.”
Great stress was laid by the learned counsel for
the appellant on the fact that the Court had
observed that the stage of framing of charges
was a very important matter because it affected
a person’s liberty substantially and, therefore,
the Court should consider judicially whether the
materials warrant framing of the charge. There
can be absolutely no doubt regarding the
correctness of the observations made by
Chandrachud J. This decision, however, is no
authority for holding that an order framing a
charge is not an interlocutory order. In the
aforesaid case, this Court was called upon to
exercise its jurisdiction under s. 482 of the
Code, that is to say, the inherent powers of the
Court was invoked to quash the proceedings in
order to prevent abuse of the process of the
Court. The term ‘interlocutory order’ 7 appearing
in s. 397 (2) of the Code did not arise for
interpretation in that case. In these
circumstances, therefore, we do not think that
this case can be of any assistance to the
appellant. Reference was also made to a
decision of this Court in the case
of Parmeshwari Devi v. State & Anr. This case
also depends on different facts and relates to
the circumstances under which a summons
could be issued under s. 94(1) of the Code of
1898. In passing, however, this Court
observed:
“The Code does not define an interlocutory
order, but it obviously is an intermediate order,
made during the preliminary stages of an
enquiry or trial. The purpose of subsection (2) of
section 397 is to keep such an order outside the
purview of the power of revision so that the
enquiry or trial may proceed without delay. This
is not likely to prejudice the aggrieved party for
32 ( 2025:HHC:9529 )
it can always challenge it in due course if the
final order goes against it. But it does ‘not follow
that if the order is directed against a person
who is not a party to the enquiry or trial, and he
will have no opportunity to challenge it after a
final order is made affecting the parties
concerned, he cannot apply for its revision even
if it is directed against him and adversely
affects his rights.”
Although this Court said that the Code does not
define an interlocutory order, it does not include
an intermediate order made during the
preliminary stages, of an inquiry or trial. This
Court laid greater stress on the fact that an
order which was directed against a person who
was not a party to the inquiry or trial and had,
therefore, no opportunity to place his point of
view could not be bound by any order passed
against him. This appears to be the ratio of that
case. Reliance was also placed on a decision of
this Court in the case of Century Spinning &
Manufacturing Co. Ltd. v. The State of
Maharashtra in order to urge that the stag, of
framing of charges is a matter of moment and
an order framing a charge could not be termed
as an interlocutory order. In the first place, the
judgment of the aforesaid case was rendered
before the Code of 1973 was passed and,
therefore, the interpretation of interlocutory
order as contained in s. 397 (2) of the Code
could not have arisen for consideration.
Secondly, the decision was given on the scope
and ambit of s. 251A of the Code of 1898 AS
amended by the Act of 1958. Dealing with the
scope of sub sections (2) and (3) of s. 251A of
the Code of 1898, this Court observed as
follows:(1) “The argument that the Court at the
stage of framing the charges has not to apply its
judicial mind for considering whether or not
there is a ground for presuming the commission
of the of offence by the accused is not
supportable either on the, plain language of the
section or on its judicial interpretation or on any
33 ( 2025:HHC:9529 )
other recognised principal of law. The order
framing the charges does substantially affect
the person’s liberty and it is not possible to
countenance the view that the Court must
automatically frame the charge merely because
the prosecuting authorities, by relying on the
documents referred to in Section 173, consider it
proper to institute the case. The responsibility of
framing the charges is that of the Court and it
has to judicially consider the question of doing
so. Without fully adverting to the mate rial on
the record it must not blindly adopt the decision
of the prosecution.”
30. This case was followed in the case of
Mohammad Amin Brothers Ltd. & Ors. v.
Dominion of India & Ors. where it was held that
so far as this Court is concerned the principles
laid down in Kuppuswamis case (supra) settled
the law. In this connection, in the aforesaid
case, Mukherjea, J., speaking for the Court
observed as follows:
“The expression “final order” has been used in
contradistinction to what is known as
“interlocutory order” and the essential test to
distinguish the one from the other has been
discussed and formulated in several cases
decided by the Judicial Committee. All the
relevant authorities A BEARING on the question
have been reviewed by this Court in their recent
pronouncement in S. Kuppuswami Rao v. The
King, and the law on point, so far as this court
is concerned, seems to be well settled. In full
agreement with the decisions of the Judicial
(committee in Ram Chand Manjimal v.
Goverdhandas Vishindas and Abdul Rahman v.
D. K. Cassim and Sons, and the authorities of
the English Courts upon which These
pronouncements were based, it has been held
by this court that the test for determining the
finality of an order is, whether the judgment or
order finally disposed of the rights of the
parties.” C Thus, the Federal Court in its
34 ( 2025:HHC:9529 )decision seems to have accepted two principles,
namely,
(1) that a final order has to be. interpreted in
contradistinction to an interlocutory order: and
(2) that the test for determining the finality of an
order is whether the judgment or order finally
disposed of the rights of the parties.
31. These principles apply to civil as also to
criminal cases as pointed out by Kania C.J. in
the case of S. Kuppuswami Rao v. The King
(supra?. We find ourselves in complete
agreement with the view taken by Mukherjea J.
which is based on English cases as also the
view taken by the Judicial Committee and the
Federal Court.
32. The view taken in Kuppuswami’s case
(supra) was endorsed by this Court in the case
of Mohan Lal Magarl Lal Thacker v. State of
Gujarat where it was held that generally
speaking a judgment order which determines
the principal matter in question is termed final.
The English decisions as also the Federal Court
decisions were referred to in this case and after
considering the decisions, this court observed
as follows :
“The meaning of the two words “final” and
“interlocutory” has, therefore, to be considered
separately in relation to the particular purpose
for which it is required. However, generally
speaking, a judgment or order which
determines the principal matter in question is
termed final….An interlocutory order, though not
conclusive of the main dispute may be
conclusive as to the subordinate matter with
WHICH it deals ….If the decision on an issue
puts an end to the suit, the order is undoubtedly
a final one but if the suit is still left alive and
has yet to be tried in the ordinary way, no
finality could attach to the order.. This test was
adopted in S. Kuppuswami Rao v. The King
where the court also held that the words
“judgment” and ‘order’ have the same meaning
35 ( 2025:HHC:9529 )whether the proceeding is a civil or a criminal
proceeding. In Mohammad Amin Brothers Ltd. v.
Dominion of India the Federal Court following its
earlier decision adopted against the test, viz.,
whether the judgment or order finally disposed
of the rights of the parties.”
33. There is yet another aspect of the matter
which has to be concerned so far as this
decision is considered, to which we shall advert
when we deal with the last plank of the
argument of the learned counsel for the
appellant. Suffice it to say at the moment that
the case referred to also fully endorses the view
taken by the Federal Court and the English
decisions, viz., that an order is not a final but all
interlocutory one if it does not determine or
decide the rights of parties once for all. Thus, on
a consideration of the authorities, mentioned
above, the. following proposition emerge:
(1) that an order which does not determine the
rights of the parties but only one aspect of the
suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to
be ex plained. in contradistinction to a final
order. In other words, if an order is not a final
order, it would be an interlocutory order;
(3) that one of the tests generally accepted by
the English Courts and the Federal Court is to
see if the order is decided in one way, it may
terminate the proceedings but if decided in
another way, then the proceedings would
continue; because, in our opinion, the term
‘interlocutory order’ in the Criminal Procedure
Code has been used in a much wider sense so
as to include even intermediate or quasi final
orders;
(4) that an order passed by the Special Court
discharging the accused would undoubtedly be
a final order inasmuch as it finally decides the
rights of the parties and puts an end to the
controversy and thereby terminates the entire
36 ( 2025:HHC:9529 )
proceedings before the court so that nothing is
left to be done by the court thereafter;
(5) that even if the Act does not permit an
appeal against an interlocutory order the
accused is not left without any remedy because
in suitable cases, the accused can always move
this Court in its jurisdiction under Art. 136 of
the Constitution even against an order framing
charges against the accused. Thus, it cannot be
said that by not allowing an appeal against an
order. framing charges, the Act works serious
injustice to the accused.”
20. In view of the above, this Court of the view that
the order by virtue of which, the application under Section
45 of the Evidence Act has been decided, does not fall
within the definition of ‘interlocutory order’ as the
important aspect of the case has finally been decided by
permitting the accused to get his signatures over the
cheque in question compared with his signatures.
21. By no stretch of imagination, the order, by
virtue of which, the application has been allowed, can be
said to be an interlocutory order. Rather, it can be said to
be intermediatory order as the said order has decided the
rights of the parties and also affects the rival contentions of
the parties. The orders impugned herein are although not
conclusive of main dispute between the parties, but,
37 ( 2025:HHC:9529 )
conclusive of the matter subordinate to the main order. As
such, the same cannot be said to be the interlocutory
order.
22. In view of the above, this Court, now proceed to
discuss the other objections, as raised, by the learned
counsel for the parties.
23. The proper course for the accused is to get the
signatures, over the cheque, in question, compared with
his admitted signatures, however, he has made a request
simply to send the signatures for comparison to the
handwriting expert and to call for the report as to whether
the cheque in question, has been signed by the accused or
not.
24. The prayer clause in the application is
reproduced as under:
“It is, therefore, prayed that the cheque in
question be sent to the hand writing expert
and expert opinion whether the cheque has
been signed by the accused or not be called.
The signature of the accused may kindly be
taken in the Court and be sent to the hand
writing expert along with cheque in question
for the expert opinion in the interest of justice”
38 ( 2025:HHC:9529 )
25. By no stretch of imagination, it can be said that
such prayer can be accepted. Even otherwise, the learned
trial Court has also fallen into error, by fixing the case for
the presence of the accused for giving specimen signatures,
as well as, informing the Court, name of the expert, who
will compare the signatures, as, such procedure is
unknown to law.
26. While holding so, the view of this Court is being
guided by the decision of this Court in Ajitsinh Chehuji
Rathod versus State of Gujarat and Another, (2024) 4
Supreme Court Cases 453. Relevant paragraphs 14 to 16
of the judgment, are reproduced, as under:
“14. Certified copy of a document issued by a
Bank is itself admissible under the Bankers’
Books Evidence Act, 1891 without any formal
proof thereof. Hence, in an appropriate case, the
certified copy of the specimen signature
maintained by the Bank can be procured with a
request to the Court to compare the same with the
signature appearing on the cheque by exercising
powers under Section 73 of the Indian Evidence
Act, 1872.
15. Thus, we are of the view that if at all, the
appellant was desirous of proving that the
signatures as appearing on the cheque issued
from his account were not genuine, then he could
have procured a certified copy of his specimen
signatures from the Bank and a request could
have been made to summon the concerned Bank
official in defence for giving evidence regarding the
39 ( 2025:HHC:9529 )
genuineness or otherwise of the signature on the
cheque.
16. However, despite having opportunity, the
accused appellant did not put any question to the
bank official examined in defence for establishing
his plea of purported mismatch of signature on the
cheque in question and hence, we are of the firm
opinion that the appellate Court was not required
to come to the aid and assistance of the appellant
for collecting defence evidence at his behest. The
presumptions under the NI Act albeit rebuttable
operate in favour of the complainant. Hence, it is
for the accused to rebut such presumptions by
leading appropriate defence evidence and the
Court cannot be expected to assist the accused to
collect evidence on his behalf.”
27. In view of the discussion made above, the order
dated 05.02.2024, passed by the trial Court does not
survive in the judicial scrutiny by this Court. As such, the
revision petition is allowed and the order dated 05.02.2024
passed in Case No.55I14 RBT 41I2019, titled as Rajeev
Sharma versus Pradeep Kumar, and the orders subsequent
thereto, are set aside.
28. Parties, through their learned counsel, are
directed to appear before the learned trial Court on 10th
April, 2025.
Send down the record forthwith.
( Virender Singh )
March 28, 2025 (ps) Judge